Social media dismissals
We are hearing more and more of employees who are dismissed from their employment because of private postings made on their own social media sites. The actor from Coronation Street who was recently dismissed by ITV because he made discriminatory postings on his personal Twitter account is a prime example of this.
Set out below are some factors that an employer should consider when faced with this type of situation:
- Consider what was actually said – saying “I think I work in a nursery and I do not mean working with plants” is very different to saying “[manager] is apparently a c**t” (both of which are real examples featuring in cases dealt with by the Employment Tribunal).
- Evaluate the reach and impact of the posting – the more posts that are made and the more people that see them, the more likely it is to have a damaging impact. Just because a person posts their comments on, say, their private Facebook page, does not necessarily mean that they should expect it to stay private; one of their “friends” could forward it on.
- Look at internal guidance and policies – many employers have a dedicated social media policy in place which sets out guidelines on what is and is not permitted use. If you do not already have such a policy, now is the time to put one in place.
- Think through the mitigating circumstances – where the employee has swiftly removed the posting or apologised, you may perhaps want to be more lenient, particularly if they have a clean employment record.
- Conduct a thorough investigation – the employee should be given an opportunity to explain themselves. There have been situations where, for example, an employee’s account has been hacked and they did not actually make the offensive posting.
- Follow the ACAS Code of Practice on Disciplinary Processes – this sets out how to run a fair disciplinary procedure, such as writing to the employee in advance to set out the allegations and allowing them to be accompanied at a disciplinary hearing.
In short, an employer must act reasonably. They should therefore reflect on whether the posting and any damage caused by it is so bad that it justifies the employee losing their job before coming to a decision.
What happens if the employer has dismissed unfairly?
The employee may have a potential claim against the employer. The most likely claim where an individual has at least 2 years of service, is an unfair dismissal claim. Compensation would be based on two elements; a basic award based on age, length of service and weekly pay (capped at £479) and a compensatory award based on the individual’s loss of earnings (essentially how long it would take them to get a comparable job, but this is capped at either 52 week’s actual gross pay or £78,962, whichever is the lower).
Other employment claims may include breach of contract, whistleblowing or discrimination (depending on the circumstances) and these can be brought even where the employee has less than 2 years’ service.
How can an employer better protect its business from social media blunders?
The first step is to have a comprehensive social media policy in place to outline how employees should behave and the consequences of non-compliance. This should tie in with your existing employment policies, such as your anti-bullying and harassment policy and your disciplinary rules and procedure. You should also check that you have the right to monitor your employees’ postings.
Next you should train your employees so that they understand the standards expected of them. Keep records of when they were trained and what they were trained on, as this could be useful evidence to help you defend any subsequent employment law claims resulting from their dismissal for social media misuse.
To find out more about social media dismissals, please download out recent report on social media in the workplace here.
This article first appeared in QuickBite magazine.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.